Education Department Begins to Assess ESSA-Era Role

New checks on authority balanced in other areas

The lights are still on at the U.S. Department of Education—but they may start flickering in a few corridors.

The new Every Student Succeeds Act does more than just give states and districts a big say over accountability—it contains a laundry list of prohibitions aimed at preventing the U.S. secretary of education from issuing marching orders on standards, teacher evaluation, school turnarounds, and more.

And, while the latest revision of the nation's main K-12 law doesn't scrap the Education Department, as some Republican presidential contenders would like, it encourages the agency to slim down its workforce.

The language reining in the department has been described as everything from politically motivated window dressing to a straitjacket for the newly installed acting secretary, John King.

Tighter Reins

Under the Every Student Succeeds Act—the latest version of the Elementary and Secondary Education Act—the U.S. secretary of education cannot:

• Tell states exactly how to turn around their lowest-performing schools or intervene in schools that are struggling.

• Coerce or provide incentives—using federal funding or flexibility—for states to adopt a particular set of standards including the Common Core State Standards.

• Specify any aspect or parameter of evaluations for teachers and school leaders developed at the state and district level.

• Use money provided under ESSA to develop, implement, administer, or distribute a federally sponsored national test, including a test aligned to common core.

• Force states to use a specific test for accountability.

• Tell states exactly how they must factor in test participation for accountability purposes. (States are supposed to include it in their accountability systems in some way, but just how is up to them.)

SOURCE: Every Student Succeeds Act

It may be a while before the impact of the prohibitions is clear, but the truth seems to be somewhere in between.

That's partly because in addition to the restrictions on secretarial authority, the law also contains some clear accountability protections. They include a continued requirement for annual testing by the states, and a focus on low-performing schools and historically overlooked groups of students in accountability, said Reg Leichty, a founding partner at Foresight Law+Policy, a law-firm.

"You have to look at those two together as balancing on a teeter-totter," Leichty said. "They may prohibit a very pro-federal-role [administration] from layering on significant new accountability requirements." But at the same time, "there are significant prescriptions about what states and districts have to do," he added.

Setting Priorities

For his part, King, who replaced recently departed Education Secretary Arne Duncan at the start of the year, said he'll spend his roughly 13 months in office focused on three priorities: encouraging equity and excellence in all schools, lifting up the teaching profession, and bolstering college completion.

And King doesn't think ESSA and its prohibitions will have a big impact on whether or not he's able to move forward with that agenda.

"The president signed the Every Student Succeeds Act because he believes and we believe that it builds on the civil rights legacy of the law. We are confident we can work together with states and ensure that implementation of the new law advances equity and excellence in our schools," King told reporters at a back-to-school visit to an elementary school in Silver Spring, Md., last week.

"The key will be to make sure states use their new flexibility around accountability and intervention systems in ways that are [focused] on equity and opportunity for the highest-need students," King said.

For his part, Sen. Lamar Alexander, R-Tenn., an architect of ESSA, said in a recent interview that under Duncan and his regime of waivers from the previous version of the law, "You had Washington running 80,000 schools in 42 states. We got rid of all that" in favor of a less-expansive federal role in K-12.

But the department will still have some tools in its shed—even if the education secretary can no longer really be a "director of policy" the way that Duncan was, said David A. DeSchryver, a lawyer who now serves as the senior vice president and co-director of Whiteboard Advisors, a consulting organization in Washington.

For instance, under ESSA, the department can't tell states how to fix their lowest-performing schools. But, thanks to investments in longitudinal data systems, the agency has more data than ever at its fingertips, which it can use to give states advice on what sorts of practices have actually worked.

"The agency will be like this anxious teenager shouting, 'I know the answer, I know the answer, ask me!' " DeSchryver said. "They won't be able to tell states what to do, but they might be able to say, 'Here are three really good options.' "

And states and districts may well take those suggestions to heart—even if they don't have to—if only because there is a scarcity of expertise on the finer points of developing accountability plans, improving schools, and measuring student progress, he added.

"Maybe [the department] will be a kind of consultant to states as they provide support for that work," DeSchryver said.

Powerful Lever

What's more, ESSA doesn't seem to have had a serious impact on the department's office for civil rights, which can be a powerful lever for making sure districts and schools look out for historically low-performing groups of students and schools, DeSchryver said.

And while the department may no longer be able to craft a Race to the Top-style competitive-grant program that rewards states for adopting a particular set of standards, the agency may be able to encourage other kinds of policies—if it can get its hands on competitive-grant funding again, Leichty said.

There appears to be nothing in the law that would prohibit King or another secretary from developing a new program providing grants to districts that want to, say, improve principal leadership, he added.

"I think they are going to have be very thoughtful about where they try to press their policy agenda," Leichty said. But he said, "There's nothing in this bill that dramatically changes the structure and nature of what the department of education does."

Still, it may be awhile before it is clear how the Obama administration plans to operate in the new ESSA era when it comes to competitive grants, new initiatives, and more.

The department is still reviewing the secretarial authority prohibitions and other aspects of the law, Dorie Nolt, a spokeswoman, said.

Language on Staff Cuts

ESSA seeks to scale back the Education Department in ways that go beyond the litany of secretarial prohibitions. It gets rid of, or consolidates, some 50 federal programs, some of which, like state education technology grants, haven't been funded in years.

It sounds like some in Congress are hoping those cuts will lead to a slimmed-down department.

Within 60 days of the law's passage, the department must publish the number of full-time equivalent employees working on programs or projects that were consolidated under the new law.

And within a year of ESSA's enactment, the secretary of education must reduce the number of full-time equivalent employees associated with those eliminated or consolidated programs or projects.

It is too soon to say how the new law may affect staffing at the department, but the agency anticipates it will result in very few—if any—cuts, Nolt said. Less than two dozen full-time staff members work on the six programs that ESSA did not continue, but almost all of these programs are funded next year, she explained.

And even if they don't continue after that, there is some work necessary to close out grants and process final paperwork, she said. Plus, new programs, such as a professional development program for literacy, created by ESSA will require staffing.

What's more, K-12 is only one piece of the department's overall portfolio, which also includes higher education.

Acting Secretary

Also on the human resources front: It's unclear whether King's status as an "acting" secretary—he hasn't been officially nominated for the post by the White House—will prove to be an impediment. King doesn't expect it will; he noted that an "acting" secretary has all the same authority as one that's been confirmed by the Senate. But Alexander has expressed concerns about King's status.

"It's important that the agency is run by someone the Senate has confirmed to increase confidence in the department's efforts to implement the law," he said.

What's more, other key positions are filled by "acting" personnel.

For instance, Ann Whalen, who left the department temporarily after playing a key role in implementing the Race to the Top competition, is back as a senior advisor, essentially filling the role of assistant secretary of elementary and secondary education.

And Amy McIntosh, whose title is "principal deputy secretary," will take on the job of the assistant secretary for planning, evaluation, and policy development.

Having a lot of "acting" officials is par for the course at this point in an administration, and shouldn't affect the work, said Marshall S. Smith, who has worked on education policy in Washington during several different presidential administrations, including, briefly, under President Barack Obama.

But a relatively short time left in office, plus a team that's likely to dwindle, means that King and company will have to set priorities for their to-do list, Smith said.

"The last year is a hard year," he said, even as he expressed confidence in his former colleagues. "Lots of people leave the closer it gets to the end."

Vol. 35, Issue 17, Pages 17, 20

Published in Print: January 13, 2016, as Education Department Begins to Scope Out ESSA-Era Role

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